Secret Legal Process at Work in Boston College Case

Parsing a Sealed Black Box“What else has the university agreed to keep confidential merely because federal prosecutors asked them to?”
Chris Bray
Thursday, January 29, 2015

Something went wrong for the police, and it’s not clear where it happened.

Last May, the Police Service of Northern Ireland announced that they were going back to Boston College for the whole Belfast Project collection, having already obtained eleven interview segments from a series of subpoenas issued in 2011. In a line that they have repeated over and over again ever since, the police released a statement: “Detectives in Serious Crime Branch have initiated steps to obtain all the material from Boston College as part of the Belfast Project. This is in line with the PSNI’s statutory duty to investigate fully all matters of serious crime, including murder.”

Until last week, there was no public evidence that they had ever actually done the thing they said they intended to do. But in a Belfast court last Friday, the PSNI confirmed that it has asked to have American authorities issue a new subpoena for Belfast Project material. (They can’t directly make that request to the Americans themselves, which is a long story.)

A person familiar with that hearing told me today that officials explained to the court what they had asked for, and (in vague terms) why: They asked for a subpoena of Belfast Project interviews with former Red Hand Commando leader Winston “Winkie” Rea, and they did so in response to specific information about a particular matter.

So compare the threat to the delivery: 1.) We’re going to get the whole collection, every interview conducted with every interviewee, versus 2.) a narrow request that only targets a specific interviewee.

Another thing made public in the Belfast court wrangling: The request for a new subpoena was sent to American authorities in a letter dated Sept. 11, 2014.

So between May and September, the new police fishing expedition into the Boston College archives was narrowed from everything to a much narrower set of documents. But no paper trail or public statements explain that change at all. The publicly announced and repeatedly affirmed police intention to seek the whole Belfast Project collection seems to have been blocked, delayed, or sharply narrowed, somewhere. But where? And why?

It could have happened in Northern Ireland, as other parties in government intervened against the police. It could have happened in the United States, after American officials got a request to subpoena the whole archive but refused to do it. It could have happened in an American court, though I doubt it got that far. But somewhere, somehow, someone said no to the police, and we don’t know who. The politics of that refusal, whenever the story emerges, will be important.

But this is only the first of many questions about the latest Belfast Project subpoena. Again, until last week’s court hearing in Belfast, there was no publicly available evidence that new subpoenas had been served at Boston College – and yet, subpoenaed material was ready for delivery. Pretty clearly, a whole legal process was conducted in secret. Among the events not made public: The appointment of a commissioner to promulgate the subpoenas, a required step under the US-UK Mutual Legal Assistance Treaty. The issuance of a subpoena, or of subpoenas. A potential court review of the scope of the subpoena and the subpoenaed material. And the delivery of the subpoenaed material to the U.S. Attorney’s Office.

A story this week in The Heights, the independent, student-run Boston College newspaper, said this remarkable thing: “The U.S. Attorney’s Office has asked that the matter remain confidential throughout the duration of the proceedings, according to University spokesman Jack Dunn.”

Note what the story doesn’t say: Why did Boston College agree to that request? And what else has the university agreed to keep confidential merely because federal prosecutors asked them to?

Several other questions follow. Boston College agreed last year to return interviews to interviewees, and began to do so. Is the university still returning interviews, or have they stopped? Are there still interviewees who are asking to have their interviews returned, and what position does Boston College take on further returns?

Richard O’Rawe got his interviews back; Winston Rea didn’t. Why?

Finally, Ivor Bell – reputedly a former IRA member, and alleged by the PSNI to have aided and abetted in the murder of Jean McConville – is being prosecuted in Northern Ireland. But his prosecution is going slowly and poorly, because the Belfast Project tapes alleged to contain his interviews can’t be connected to him. Boston College lost its collection contracts for at least some Belfast Project interviewees, and never received an identification key to the coded tapes in its possession.

So if the PSNI can’t connect Ivor Bell’s supposed Belfast Project interviews to Ivor Bell, does anyone actually know that the tapes now waiting for the PSNI at the U.S. Attorney’s Office in Boston can be proven to contain interviews with Winston Rea? Does Boston College have a signed collection contract with Rea? And what role, if any, does the missing interviewee identity key have in narrowing the PSNI’s latest fishing expedition?

It’s clear that significant developments have taken place with regard to the Belfast Project materials archived by Boston College. It seems that Boston College and the U.S. Attorney’s Office in Boston have developed a cooperative relationship rather than an adversarial one, as BC works to keep the DOJ’s secret subpoenas hidden. It’s apparent that a federal court in Boston has been engaged in secret procedural efforts, in a significant matter hidden from public view. And it’s inescapable that we have a long, long way to go in any effort to understand what has been happening since last May.

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The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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